Assessing capacity

If all steps have been taken to help and support a person to make a decision and this has not resulted in the person being able to make that particular decision, then the person will need an assessment of capacity. 

When an assessment of capacity must be made, it is vital to remember that the assessment of a person's capacity is decision specific and must be assessed in relation to the particular decision, at the time the decision needs to be made.  Any assessment undertaken on a person's capacity must start with the key principle that the person has the capacity to make the decision in question.

The Code of Practice outlines a two- stage test of capacity, in order to decide whether a person has the capacity to make a particular decision.  The stages are:

  • Does the person have an impairment of the mind or brain, or is there some sort of disturbance affecting the way their mind or brain works? (It doesn’t matter whether the impairment or disturbance is temporary or permanent.)
  • If so, does that impairment or disturbance mean that the person is unable to make the decision in question at the time it needs to be made?

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Assessing ability to make a decision

  • Does the person have a general understanding of what decision they need to make and why they need to make it?
  • Does the person have a general understanding of the likely consequences of making, or not making, this decision?
  • Is the person able to understand, retain, use and weigh up the information relevant to this decision?
  • Can the person communicate their decision (by talking, using sign language or any other means)?
  • Would the services of a professional (such as a speech and language therapist) be helpful?

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Assessing capacity to make more complex or serious decisions

  • Is there a need for a more thorough assessment (perhaps by involving a doctor or other professional expert)?

An assessment that a person lacks capacity to make a decision must never be based simply on:

  • their age
  • their appearance
  • assumptions about their condition, or
  • any aspect of their behaviour

More detailed information on assessing capacity is available in chapter 4 of the Code of Practice.

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Best Interests

One of the key principles of the Act is that any act done, or decision made, for or on behalf of a person who lacks capacity must be done in that person's best interests.

The Act does not define the term 'best interests', instead it provides a checklist of common factors which must always be taken into account in a situation where a decision is being made for a person lacking capacity. These factors have been broadly summarised below;

  • Equal consideration and non-discrimination
  • Considering all relevant circumstances
  • If the person may regain capacity
  • Permitting and encouraging the person's involvement
  • Special considerations for life sustaining treatment 
  • The person's wishes and feelings, beliefs and values, particularly where these are written down
  • The views of other people (where practicable and appropriate)

It is important to remember that this checklist does not define best interests and is not exhaustive.  More detailed information on best interests is available in chapter 5 of the Code of Practice.

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